Judicial Filibusters

I spoke at the annual Center for Arizona Policy dinner last night, where I was introduced by the estimable Jon Kyl. The GOP and conservatives are lucky to have the leadership team of Senators McConnell, Kyl and Alexander as they move into two years of weak hands that will have to be skillfully played.

I didn’t have a chance to discuss with the senator the GOP’s attitude towards judicial filibusters. I have always believed them to be extra-constitutional and supported the “Constitutional Option” in the spring of 2005 which was derailed by the Gang of 14. Now the question looms on whether the GOP will deploy the same tactic against any of the president-elect’s judicial nominees. I would prefer an early agreement to modify the Senate’s rules to provide that all judicial nominees clearing the Judiciary Committee receive a relatively prompt up-or-down vote. This would of course reward the behavior of the Democrats over the past eight years, but it would end the harm done to the advise and consent process.

If such a rule is refused by the Senate Democrats, the issue will be whether the GOP ought to use an extra-constitutional tactic to restore constitutional order. Professor Adler weighs in here.